Citation Nr: 0609352
Decision Date: 03/31/06 Archive Date: 04/07/06
DOCKET NO. 04-00 256A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to an increased rating for the residuals of an
injury of the right knee, currently evaluated as 30 percent
disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Joseph P. Gervasio, Counsel
INTRODUCTION
The veteran served on active duty from September 1972 to July
1975.
This case comes to the Board of Veterans' Appeals (Board) on
appeal of a rating decision of the Winston-Salem, North
Carolina, Regional Office (RO) of the Department of Veterans
Affairs (VA).
During the pendency of this appeal, the veteran also
submitted a notice of disagreement with the denial of service
connection for lumbar spine and left knee disabilities, as
secondary to his service-connected right knee disorder. The
RO furnished a statement of the case, but the veteran did not
submit a substantive appeal. The Board does not have
jurisdiction unless a timely substantive appeal is filed.
38 C.F.R. §§ 20.202, 20.203, 20.302 (2005).
The veteran testified at a hearing at the RO before the
undersigned Member of the Board in December 2005.
FINDING OF FACT
The veteran's knee is currently manifested by limitation of
extension to 10 degrees, limitation of flexion to 90 degrees,
joint line tenderness and abnormality on valgus testing, and
pain and tenderness of the knee. He has severe traumatic
arthritis without evidence of instability or laxity.
CONCLUSION OF LAW
The criteria for a rating in excess of 30 percent for the
postoperative residuals of a right knee injury have not been
met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a,
Diagnostic Codes 5010, 5257, 5261 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board must first address the provisions of the Veterans
Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. § 5100 et
seq. (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a). The law addresses the notification and assistance
requirements of VA in the context of claims for benefits.
In this regard, the Court has held that a notice, as required
by 38 U.S.C.A. § 5103(a), must be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim for VA benefits.
Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition,
the Court held that a notice consistent with 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) must accomplish the
following: (1) inform the claimant about the information and
evidence not of record that is necessary to substantiate the
claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
pertains to the claim, or something to the effect that the
claimant should "give us everything you've got pertaining to
your claim(s)." Id.
In VCAA letters dated in July 2002 and January 2005, the RO
notified the appellant of the information and evidence
necessary to substantiate the claim, the information and
evidence that VA would seek to provide, and the information
and evidence the appellant was expected to provide. In
addition, the RO asked the appellant to submit any evidence
in his possession that pertains to the claim. See
38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)
(2003); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; (3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Dingess/Hartman, slip op. at 14. Additionally, this notice
must include notice that a disability rating and an effective
date for the award of benefits will be assigned if service
connection is awarded. Id.
In the present appeal, the veteran was provided with notice
of what type of information and evidence was needed to
substantiate his claim for an increased rating, but he was
not provided with notice of the type of evidence necessary to
establish an effective date for the disability on appeal.
Despite the inadequate notice provided to the veteran on
these latter two elements, the Board finds no prejudice to
the veteran in proceeding with the issuance of a final
decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993)
(where the Board addresses a question that has not been
addressed by the agency of original jurisdiction, the Board
must consider whether the veteran has been prejudiced
thereby). In that regard, as the Board concludes below that
the preponderance of the evidence is against the appellant's
claim and any question as to the appropriate effective date
to be assigned is rendered moot.
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
Arthritis due to trauma, substantiated by X-ray findings,
shall be rated as degenerative arthritis. 38 C.F.R. § 4.71a,
Code 5010.
Degenerative arthritis established by X-ray findings will be
rated on the basis of limitation of motion under the
appropriated diagnostic codes for the specific joint or
joints involved. When the limitation of motion of the
specific joint or joints involved is noncompensable under the
appropriate diagnostic codes, an evaluation of 10 percent is
applied for each major joint or group of minor joints
affected by limitation of motion. These 10 percent
evaluations are combined, not added, under diagnostic code
5003. Limitation of motion must be objectively confirmed by
findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion. In the absence of limitation of
motion, a 10 percent evaluation will be assigned where there
is X-ray evidence of involvement of two or more major joints
or two or more minor joint groups. A 20 percent evaluation
will be assigned where there is X-ray evidence of involvement
of two or more major joints or two or more minor joint groups
and there are occasional incapacitating exacerbations.
38 C.F.R. 4.71a, Code 5003.
For severe impairment of the knee, including recurrent
subluxation or lateral instability, a 30 percent is
warranted. 38 C.F.R. § 4.71a, Code 5257.
Limitation of flexion of either leg to 15 degrees warrants a
30 percent rating. 38 C.F.R. § 4.71a, Code 5260.
Limitation of extension to 20 degrees warrants a 30 percent
rating. A 40 percent rating requires that extension be
limited to 30 degrees. 38 C.F.R. § 4.71a, Code 5261.
Ankylosis of the knee will be rated as 30 percent disabling
at a favorable angle in full extension or in slight flexion
between 0 and 10 degrees; a 40 percent rating requires
ankylosis in flexion between 10 and 20 degrees.
38 C.F.R. § 4.71a, Code 5256.
Service connection for the postoperative residuals of a right
knee injury was established by rating decision of the RO in
August 1975. A 10 percent evaluation was assigned at that
time. The rating was increased to 30 percent in a July 1992
on the basis of limitation of motion from 10 degrees
extension to 90 degrees flexion, with medial joint line
tenderness, valgus stress causing a joint line opening of 10
degrees, moderate crepitus, spurring on X-ray studies and
knee joint instability. It is noted that this rating, while
made under the provisions of other impairment (diagnostic
code 5257) also encompasses elements of arthritis and
limitation of motion. In cases where there are distinct
disabilities caused from arthritis of the knee as well as
other impairment of the knee, separate evaluations may be
assigned. See VAOPGCPREC 23-97. If a rating is assigned
under the provisions for other knee impairment
(38 C.F.R. § 4.71a, Code 5257) a separate rating may be
assigned where some limitation of motion, albeit
noncompensable, has been demonstrated. See VAOPGCPREC 9-98.
This combined 30 percent rating was further expressed in a
May 2002 rating decision that confirmed and continued the
current evaluation, which rated the disability under the
codes for both arthritis and other impairment of the knee.
The Board has reviewed all of the evidence of record and has
not found a basis upon which a rating in excess of the
current 30 percent evaluation may be assigned.
In that regard, the veteran has significant right knee
impairment, manifested primarily by pain and limitation of
motion. This has been characterized as severe impairment by
at least one examiner. The severe impairment however, does
not include objective evidence of instability or subluxation.
Moreover, there is no ankylosis shown. As such and as noted,
there is no basis for separate ratings for the current knee
impairment.
As described in the criteria for a 40 percent rating,
outlined above, a 40 percent rating requires either ankylosis
of the joint or limitation of extension of the knee to only
30 degrees. The veteran has been examined on several
occasions during the pendency of the appeal. On examination
by VA in November 2002, the veteran lacked 13 degrees of
extension and, while tenderness of the knee joint and the
need to wear a knee brace were described, ankylosis of the
right knee was not diagnosed. Although the veteran's
repeated surgeries were noted, and it was commented that it
has been recommended that the veteran consider a total knee
replacement of the knee, the criteria for a rating in excess
of 30 percent were not described. On examination by VA in
June 2003, the veteran complained of pain, swelling on
occasion, giving way, and locking of the right knee at times.
Examination at that time showed that he could only extend the
knee to 10 degrees and could flex it to 110 degrees. There
was crepitus through the range of motion, but no drawer sign
or McMurray's sign were noted. There was no abnormality to
valgus or varus stress on this occasion. The pertinent
assessment was posttraumatic arthritis of the right knee,
status post torn meniscectomy, with residual degenerative
joint disease.
While significant disability was demonstrated on each of
these VA examinations, there is no indication that the
veteran has limitation of extension approaching 30 percent or
ankylosis of the knee joint. While he has significant pain
in the knee, there is no indication of functional loss due to
this pain such that a rating in excess of the current 30
percent rating is warranted. See DeLuca v. Brown, 8 Vet.
App. 202, at 204-206, 208 (1995). This is further
established by the findings of the most recent VA outpatient
treatment, which was conducted at the surgical clinic in May
2005. At that time, active range of motion was from 10
degrees extension to 75 degrees flexion, with passive range
showing the same extension, but increased to 90 degrees
flexion. The examiner commented that the veteran would need
a total knee replacement, but that this should be deferred
for several years until the veteran was a little older. In
testimony at a hearing before the undersigned in December
2005, the veteran stated that the motion of his knee was
about the same as previously described in the VA
examinations. He further stated that since 2003, he had much
more pain in the knee, and needed to wear a brace at all
times. He did not, however, offer testimony regarding
symptoms of his knee disability that demonstrate a level of
disability over and above the current 30 percent rating that
is in effect for the combined effects of arthritis and other
knee disability. In addition, at the hearing, the veteran
waived consideration of a statement that was to be received
from his private physician. This letter, dated in February
2006, was received by the Board in March 2006. While it is
indicated that the veteran is totally disabled due to the
condition of both of his knees, it is noted that the veteran
is, as yet, not service connected for his left knee disorder
and symptomatology showing that an increased rating for the
right knee is not described.
In short, the veteran is currently rated 30 percent disabling
based upon the combined disability from arthritis and other
disability. For a rating in excess of this 30 percent, the
veteran would have to show disability that warrants a 40
percent rating, specifically ankylosis of the knee joint or
limitation of extension to 30 degrees. The medical evidence
does not show this level of disablement. Therefore, as the
veteran's knee is currently manifested by limitation of
extension to 10 degrees, limitation of flexion to 90 degrees,
joint line tenderness and abnormality on valgus testing, and
pain and tenderness of the knee, a rating in excess of the
current 30 percent rating is not warranted.
The preponderance of the evidence is against the claim, and
therefore the benefit of the doubt doctrine is inapplicable.
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
ORDER
A rating in excess of 30 percent for the postoperative
residuals of an injury of the right knee is denied.
____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs